ADVERTISING SLOGANS: Fact vs. Puffing

IVAN HOFFMAN, B.A., J.D.

We’ve all seen and heard
it: such and such product is the “best,” the “most” this or the “most”
that and similar phrases. Where is the line between false advertising
and otherwise acceptable “puffing?”

[Note: I have previously
written about the possibilities of protecting slogans in an article called
“Protecting
Slogans.”]

A case out of the Eighth
Circuit Court of Appeals has helped clarify some of these issues. In American
Italian Pasta Company vs. New World Pasta Company the Court was called
upon to decide if the use of the phrase “America’s Favorite Pasta” by American
Italian Pasta Company was false and misleading advertising under the Lanham
Act and various state laws.

The Court summarized the
facts as follows:

From 1997 to 2000, American manufactured Mueller’s brand
(Mueller’s) dried pasta for Best Foods. In the fall of 2000, American purchased
Mueller’s and assumed all packaging, distributing, pricing, and marketing
for the brand. Since purchasing Mueller’s, American has placed the phrase
“America’s Favorite Pasta” on Mueller’s packaging. On various packages,
the phrases “Quality Since 1867,” “Made from 100% Semolina,” or “Made with
Semolina” accompany the phrase “America’s Favorite Pasta.” The packaging
also contains a paragraph in which the phrase “America’s Favorite Pasta”
appears. The paragraph states (1) pasta lovers have enjoyed Mueller’s pasta
for 130 years; (2) claims Mueller’s “pasta cooks to perfect tenderness
every time,” because Mueller’s uses “100% pure semolina milled from the
highest quality durum wheat;” and (3) encourages consumers to “[t]aste
why Mueller’s is America’s favorite pasta.”

New World demanded that American
cease the use of such phrase and American filed the litigation seeking
a declaration from the Court that such phrase was not false and misleading
advertising but was instead mere puffery.

New World claims American’s use of the phrase is false
or misleading advertising, because, according to New World’s consumer survey,
the phrase conveys Mueller’s is a national pasta brand or the nation’s
number one selling pasta. American and New World agree Barilla sells the
most dried pasta in the United States and American’s brands are regional.

The Court in a footnote cited
the Lanham Act which states, in section 43 (a), in part:

(1) Any person who, on or in connection with any goods
. . . uses in commerce any . . . false or misleading description of fact,
or false or misleading representation of fact, which –. . .(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or her
or another person’s goods, services, or commercial activities, shall be
liable in a civil action by any person who believes that he or she is or
is likely to be damaged by such act.

15 U.S.C. § 1125(a) (emphasis added).

Thus, the Court, citing another
case, stated:

To establish a false or deceptively misleading advertising
claim under section 43(a) of the Lanham Act,4 New World must establish:

(1) a false statement of fact by [American on
its packaging] about its own or another’s product; (2) the statement actually
deceived or has the tendency to deceive a substantial segment of its audience;
(3) the deception is material, in that it is likely to influence the purchasing
decision; (4) the defendant caused its false statement to enter interstate
commerce; and (5) the plaintiff has been or is likely to be injured as
a result of the false statement. [emphasis supplied]

The Court said:

Under section 43(a), two categories of actionable statements
exist: (1) literally false factual commercial claims; and (2) literally
true or ambiguous factual claims “which implicitly convey a false impression,
are misleading in context, or [are] likely to deceive consumers.” United
Indus., 140 F.3d at 1180. Besides actionable statements, a category of
non-actionable statements exists. Id. Many statements fall into this category,
popularly known as puffery. Id. Puffery exists in two general forms: (1)
exaggerated statements of bluster or boast upon which no reasonable consumer
would rely; and (2) vague or highly subjective claims of product superiority,
including bald assertions of superiority. Pizza Hut, 227 F.3d at 496-97;
United Indus., 140 F.3d at 1180.

Juxtaposed to puffery is a factual claim. A factual claim is a
statement that “(1) admits of being adjudged true or false in a way that
(2) admits of empirical verification.” Pizza Hut, 227 F.3d at 496 (quoting
Presidio Enters., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 679
(5th Cir. 1986)). To be actionable, the statement must be a “specific and
measurable claim, capable of being proved false or of being reasonably
interpreted as a statement of objective fact.” Coastal Abstract Serv.,
Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir. 1999); cf.
United Indus., 140 F.3d at 1180 (noting puffery does not include “false
descriptions of specific or absolute characteristics of a product and specific,
measurable claims of product superiority”). Generally, opinions are not
actionable. Coastal Abstract, 173F.3d at 731.

Puffery and statements of fact are mutually exclusive. If a statement
is a specific, measurable claim or can be reasonably interpreted as being
a factual claim, i.e., one capable of verification, the statement is one
of fact. Conversely, if the statement is not specific and measurable, and
cannot be reasonably interpreted as providing a benchmark by which the
veracity of the statement can be ascertained, the statement constitutes
puffery. Defining puffery broadly provides advertisers and manufacturers
considerable leeway to craft their statements, allowing the free market
to hold advertisers and manufacturers accountable for their statements,
ensuring vigorous competition, and protecting legitimate commercial speech.

The Court then analyzed the
statement “America’s Favorite Pasta” with the above factors in mind and
concluded that such statement was not an actionable statement of fact but
mere puffery.

“America’s Favorite Pasta” is not a specific, measurable
claim and cannot be reasonably interpreted as an objective fact. “Well
liked” and “admired” [part of the definition of “favorite”] are
entirely subjective and vague. Neither the words “well liked” nor “admired”
provide an empirical benchmark by which the claim can be measured. “Well
liked” and “admired” do not convey a quantifiable threshold in sheer number,
percentage, or place in a series. A product may be well liked or admired,
but the product may not dominate in sales or market share. …

“America’s Favorite Pasta” also does not imply Mueller’s is a
national brand. First, “America’s” is vague, and “America’s,” as well as
“America” and “American” used in a similar context, is a broad, general
reference. Second, a brand, chain, or product could be America’s favorite
without being national.

The Court also concluded
that nothing in the use of the said phrase on the packaging of the product
changed the phrase into a statement of fact.

The Paragraph and the Phrases fail to transform “America’s
Favorite Pasta” into a statement of fact. The Paragraph does not suggest
a benchmark by which the veracity of American’s statement can be verified.
The Paragraph generally declares the brand has existed for 130 years, Mueller’s
tastes great, cooks to perfect tenderness, and is manufactured from high
quality grain. We assume, arguendo, the sentence “Taste why Mueller’s is
America’s favorite pasta” incorporates the attributes listed in the Paragraph
into American’s claim. Two attributes listed in the Paragraph are subject
to verification: Mueller’s is made from 100% pure semolina, and the brand
is more than 130 years old. New World does not contend these claims are
false. The remaining attributes listed in the Paragraph are unquantifiable
and subject to an individual’s fancy.

The Court then discussed
whether the results of a consumer survey as to the meaning of the phrase
changed the slogan into an actionable misleading statement of fact.
The Court, citing a case out of the Seventh Circuit, concluded:

We agree with the Seventh Circuit. To allow a consumer
survey to determine a claim’s benchmark would subject any advertisement
or promotional statement to numerous variables, often unpredictable, and
would introduce even more uncertainty into the market place. A manufacturer
or advertiser who expended significant resources to substantiate a statement
or forge a puffing statement could be blind-sided by a consumer survey
that defines the advertising statement differently, subjecting the advertiser
or manufacturer to unintended liability for a wholly unanticipated claim
the advertisement’s plain language would not support. The resulting unpredictability
could chill commercial speech, eliminating useful claims from packaging
and advertisements. As the Seventh Circuit noted, the Lanham Act
protects against misleading and false statements of fact, not misunderstood
statements. Id. at 886.

Conclusion

The line between statements
of fact which, if false or misleading can be actionable, and mere puffery
is vague and uncertain and have to be determined on a case by case basis.
You should consult with your attorney.

This article is not legal advice and is not intended as legal advice.
This article is intended to provide only general, non-specific legal information.
This article is not intended to cover all the issues related to the topic
discussed. The specific facts that apply to your matter may make
the outcome different than would be anticipated by you. This article
is based on United States law. You should consult with an attorney
familiar with the issues and the laws of your country. This article
does not create any attorney client relationship and is not a solicitation.

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